The High Court has allowed an appeal against the decision of the Victorian Court of Appeal on manifestly excessive sentencing in the context of a drug importation offence. Pham pleaded guilty to importing a marketable quantity of heroin and was sentenced to eight years and six months with a non-parole period of six years. The Court of Appeal allowed Pham’s appeal against the sentence on the basis that the initial sentence was outside the range reasonable open to a sentencing judge in Victoria, and reduced the sentence to six years imprisonment and a non-parole period of four years. In making that decision, the Court of Appeal relied partly on statistics presented by both Pham and the DPP on similar cases: counsel for Pham presented only Victorian sentencing decisions, while the DPP presented sentencing decisions from Victoria and other jurisdictions. The central issue before the High Court were whether the Court of Appeal’s use of statistical analysis was correct; the Crown seeks to argue that the Court of Appeal impermissibly relied only on Victorian sentencing practice and incorrectly used the statistical analysis to determine the objective seriousness of the offence.

The High Court unanimously allowed the appeal. The joint judgment (French CJ, Keane and Nettle JJ) held that Maxwell P erred in holding that the respondent was only entitled to expect to be sentenced in accordance with Victorian sentencing practices: nation-wide consistency in sentencing federal offences requires that a court consider the relevant range of sentences applied across all Australian jurisdictions (at [17]ff, see also Hili v The Queen [2010] HCA 45). The joint judgment also rejected the respondent’s submission that it was open to the Court of Appeal to nonetheless prefer Victorian practices, reiterating that comparison provides guidance for sentencing principles and discerning patterns in sentencing, and does not disclose some ‘correct range’ of upper and lower limits (see [25]–[27]): ‘to prefer one State’s sentencing practices to sentencing practices elsewhere in the Commonwealth, or at least to prefer them for no more reason than that they are different, is contrary to principle, tends to exacerbate inconsistency and so ultimately is unfair’ (at [27]). Because Kyrou JA was influenced by Maxwell P’s emphasis on Victoria, and because Osborn JA took the disparity between jurisdictions to be in itself a relevant consideration (at [30]), the Court of Appeal erred in sentencing the respondent in accordance with Victorian, rather than nation-wide practice. The joint judges also held that Maxwell P erred in using statistical analyses in tables and graphs because that analysis incorrectly assumed that the respondent’s role as a drug courier and the weight of the drug imported as the only variable factors relevant to the seriousness of the offence (see [32]–[37]).

Bell and Gageler JJ agreed with the orders of the joint judges and their reasoning on the first ground of appeal, but took a different approach to the statistical analysis ground in that it also raised a question of the reasonable consistency of sentencing outcomes (at [42]). Here, the ‘reasonable’ aspect of consistency acknowledges that sentencing is discretionary and that the mix of factors to be weighed will never be precisely the same as in the past ([46]) and careful use of statistics is warranted (see at [47]–[49]). Maxwell P’s holding that courier status was the only variable was an error (at [52]), and while Osborn JA analysed the statistical material in more detail, he erred in treating the pattern of past sentences as defining boundaries for the trial judge’s discretion (see at [54]).

Because the reasoning of each judge was at least partly affected by error, the orders of the Court of Appeal were set aside, and the matter was remitted to the Court of Appeal for redetermination (at [39).